New doubts in 'shaken baby' fatalities

Some in Arizona see convictions overturned

Drayton Witt kept insisting he had nothing to do with the death of his 4-month-old baby. He said it the night he brought the near-comatose infant into the emergency room on June 1, 2000. He said it during his sentencing, following his conviction on murdering the boy by shaking him. And he was still proclaiming his innocence as he started serving his 20-year sentence in 2002.

His lamentations didn't gain legal and medical weight until 2012. The Arizona Justice Project, a volunteer group of attorneys, filed a motion to toss out his murder conviction based on the evolving science around what was known as shaken-baby syndrome. The state did not file an argument in response. Witt was released on May 31, becoming the second Arizonan in the last two years to see his guilty verdict in a shaken-baby case erased.

Among those who helped secure Witt's freedom was the 97-year-old British pediatric neurosurgeon who, in 1971, first identified the trio of telltale symptoms that became accepted as proof that a baby had been violently shaken. Attorneys also secured a sworn statement from the medical examiner who originally ruled the baby died from being shaken. His revised conclusion was that the baby died of a disease.

Fifteen months earlier, in February 2011, a Buckeye man named Armando Castillo, 42, had his conviction overturned in the 1998 death of a toddler. Like Witt, Castillo maintained his innocence throughout. And, like Witt, Castillo would be imprisoned a long time before attorneys found medical evidence to back up his story.

In both cases, judges ruled that a jury would likely acquit each man after hearing the new medical understanding of the evidence.

The overturned convictions didn't erase the charges, just sent the cases back for a possible retrial. Prosecutors decided to keep pursuing murder charges in both cases. Castillo pleaded guilty to a reduced charge to avoid the risk of a retrial. Witt's murder trial is scheduled for 2013.

Maricopa County Attorney Bill Montgomery said that his office still believes that Witt was responsible for the death of the 4-month-old baby boy. "Obviously, we believed it the first time around," Montgomery said.

He said prosecutors now focus more on proving that a child was injured, not necessarily that he was shaken. Montgomery said speculation that suspected abused children died from diseases was just defense-attorney theories.

"I think we're still looking at cases where children were injured," Montgomery said. "How we prove that may change."

That's because a growing body of medical and legal experts, nationally and internationally, are casting doubt on what became known as shaken-baby syndrome. Pediatric neurologists and forensic pathologists say the long-held triad of symptoms -- bleeding on the brain, swelling of the brain and bleeding in the eyes -- thought to indicate a baby was violently and intentionally shaken could also be caused by a host of diseases, including infections.

DePaul University law professor Deborah Tuerkheimer, who wrote a 2009 study on the use of shaken-baby syndrome in courtrooms, said the easily spotted symptoms became not only a medical diagnosis but also a legal tool adopted quickly and used convincingly in courtrooms nationwide.

Physicians would testify that a shaken child would become unresponsive or go limp almost immediately after the abuse. So the last adult with the child would be the primary suspect. And the shaken-baby diagnosis also provided a motive: a frustrated caregiver looking to quiet a crying child.

Some shaken-baby cases included other signs of violent abuse, such as broken bones, bruises or fractures. But others, like in Witt's case, had no outward signs of injuries. Cases were built solely on the symptoms of shaken-baby syndrome.

"(The syndrome) did all of the work," Tuerkheimer said. Jurors would hear the experts testify with certainty and couple that with an "inclination to want to convict and hold someone responsible for such an awful outcome," she said.

In the last half of the 1990s, the Maricopa County Attorney's Office handled shaken-baby cases at the rate of two a week. During one stretch, it had a conviction rate, in non-fatal cases, of 84 percent.

Tuerkheimer said many of the defendants were convicted in emotional trials, while others took plea deals because they saw little chance of winning. She said there's no way to know whether the Witt and Castillo cases are isolated wrongful convictions or signs of a systemic flaw that will produce hundreds of reversals.

"No one has any sense of the numbers here," Tuerkheimer said.

Witt knows he is No. 2, the second shaken-baby conviction in Arizona to be vacated. But he figures the pattern that police and prosecutors followed in his case was repeated many more times.

"The system is flawed," he said. "I'm sure there's a lot of people like that."

* * *

Maria Holt's baby son, Steven, was just shy of being 5 months old on June 1, 2000. Dressed in a blue and white onesie, he slept in his car seat as Witt dropped Holt off for her evening shift as a waitress at the Bill Johnson's Big Apple restaurant in north Phoenix.

Witt, then 18, and Holt, then 20, had been boyfriend and girlfriend since they'd met two years before, but Steven had been conceived with another man during a breakup. Regardless, Witt saw the baby as his son; he was in the delivery room when Steven was born, and the child carried his last name. It was routine for Witt to care for Steven when Holt was at work; she often called home between tables to check in.

During one call around 8 or 9 that night, Witt told Holt he thought Steven might have had another seizure. His eyes appeared odd, Witt said, and he was fussy. Holt said to come get her at the restaurant and they would take the baby to the emergency room.

Steven had been a sickly baby, in and out of the hospital three times during his short life, including a six-day stay at Phoenix Children's Hospital just a month earlier when doctors couldn't get a bead on what was causing the baby's vomiting and seizures.

On this night, the boy stopped breathing during the 6-mile drive from the restaurant to Paradise Valley Hospital. Witt pulled over and climbed into the back seat to perform CPR while Holt took the wheel. At the hospital, doctors worked to get Steven breathing again. Then the baby's heart stopped. It took them about 30 minutes to stabilize him, after which he was flown to Phoenix Children's Hospital.

A doctor at Paradise Valley Hospital, in a report, diagnosed the cardiac arrest and said the baby was suffering from dehydration and possibly sepsis, a severe reaction to bacteria. He also expressed concern about brain injury caused by dehydration, too much acid in the blood, and not enough oxygen. There was no mention of suspected abuse.

Witt and Holt left Paradise Valley Hospital to drive to Phoenix Children's. Expecting another long hospital stay, they stopped by their home to pick up extra clothes.

* * *

The idea that violent shaking of infants could cause brain injury was first proposed in a medical-journal article in 1971. Not only did it gain acceptance in the medical community over the next two decades, it also seeped into popular culture. Child-abuse prevention groups started awareness campaigns; the phrase "shaken-baby syndrome" entered the Random House dictionary in 1996.

By 2001, the American Academy of Pediatrics produced a position paper on shaken-baby syndrome, saying that doctors should presume abuse in any baby under a year old who had head injuries absent obvious trauma, such as a car accident. The paper, published in the journal Pediatrics, said the "constellation" of injuries in a shaken baby could not result from an accidental trip or fall.

The article also offered a psychological profile of adults who shake a child. "Such shaking often results from tension and frustration generated by a baby's crying or irritability," the journal article said, "yet crying is not a legal justification for such violence." It went on to warn that shaken babies were often misdiagnosed, meaning doctors needed to be extremely vigilant to spot them.

After Steven arrived at Phoenix Children's Hospital, a doctor who evaluated him wrote that the baby had no bruising or skull deformities, but showed some bleeding in the eyes. The doctor also noted that "the infant is flaccid. There is no response to pain."

At 3 a.m., a pediatrician wrote on a progress report that the baby's symptoms "raise the possibility of non-accidental trauma."

Medical records show doctors knew their infant patient had been at the hospital a month before for projectile vomiting and flulike symptoms. But by 7 a.m., doctors felt sure of what they were looking at.

"The findings are most consistent with shaken baby, plus or minus hypoxia injury," read a doctor's progress report on the case. Hypoxia refers to an injury caused by lack of oxygen.

Steven's condition did not improve. At noon, doctors declared him brain dead. One wrote the following: "Mom is currently hugging the patient and we are planning to withdraw support and allow him to progress to cardiac death later on this afternoon. The police have been notified of the findings."

Steven was pronounced dead at 3:30 p.m. on June 2.

* * *

In a case where shaken-baby syndrome seems a possibility, events quickly and simultaneously move along parallel tracks: doctors working to save a baby, police working to find a suspect.

But once doctors and police believe they are dealing with a shaken-baby case, they often ignore evidence that might suggest a different reason for a baby's illness, said Christina Rubalcava, an attorney with the Arizona Justice Project.

"You're already locked in to what it is," said Rubalcava, an attorney with Osborn Maledon who volunteered her time on the Witt case. She says that in general, once a doctor sees the triad of symptoms, a call to child-welfare agencies and police becomes automatic. The belief in shaken-baby syndrome "is like gospel to them," she said.

But Kathy Coffman, a pediatrician at Phoenix Children's Hospital who specializes in abuse cases, denied that doctors automatically diagnose shaking and ignore disease or infections or other causes. "We go through all the factors to make sure we're not missing something," Coffman said.

Coffman, a pediatrician for 20 years, was not at Phoenix Children's Hospital when Steven was treated and would not comment specifically on this case. She now is the medical director of a specialized unit at the hospital, made up of doctors and social workers, that handles suspected cases of abuse. "I don't think anybody who works in this field, law enforcement or anybody, is cavalier about making these calls," she said.

"The absolute last thing I want to do," she said, "is have someone go to prison for something they didn't do."

In the early morning hours of June 2, Phoenix police interviewed Witt and Holt as they sat in a room near their child. The questions seemed accusatory from the start, Witt said, and he ended the interview. A worker with the state's child-protection agency, in a report written later that morning, would say officers described Witt as "short-tempered and volatile."

After Steven died and Witt and Holt were leaving the hospital to go home, they found their car missing; police had seized it from the parking lot to search it for possible evidence. Friends drove them home, where they found two officers, armed with a warrant, who had been searching the trailer since 11:30 a.m. -- 4 hours before Steven died -- to find evidence to build a case.

"One thing after another," Holt said. "It's heartbreaking."

The police left at 9:30 p.m. They had pulled up carpet samples and took some baby items. The next day, officers knocked on the door and asked to take Witt in for questioning.

"Let's go," Witt said. "I ain't got nothing to hide."

Witt is a man of few words and didn't offer many to police. When detectives questioned him about what happened to the baby, Witt replied that he didn't know and that they should ask the doctors.

Witt was booked into jail on charges of first-degree murder and child abuse. He would remain jailed until his trial.

Holt said the arrest was devastating. "I lose my son, and then I lose the man who's done nothing but love me and love my son," she said. She had support from her extended family but felt some friends slip away. When she visited Witt in jail, which was often, she worked to buoy his spirits: "You'll be home soon," she would say. "This is just a misunderstanding. We know the truth."

Witt had a public defender who tried to get a plea deal, but Witt refused to take it. "When they arrested me, I figured somewhere down the line they'd come to their senses and figure out the right stuff," Witt said. "But clearly they didn't."

The trial started in February 2002.

"Steven Witt lived only five months," the prosecutor, Dyanne Greer, told the jury in her opening statement, according to a transcript. "He died as the result of violent, severe shaking. ... He died at the hands of a person who was supposed to be the caretaker ... and that man, ladies and gentlemen, is Drayton Witt."

Holt was called to the stand; she would be the first witness. It would be her job to tell the couple's story: how they "just clicked" when they first met through a friend; how Holt's extremely protective dog immediately warmed up to Witt; how, when she became pregnant by another man, Witt treated the child as if he were his own. She also told the jury about the baby's history of illnesses and hospitalizations, which included a respiratory infection, pneumonia, seizures and vomiting, and how the medicine he was given only seemed to make him worse.

After Holt, four doctors and the medical examiner took the stand. Each testified that Steven's injuries were most likely caused by shaking. To the jury, the evidence would have seemed strong and specific: The boy had certain injuries that, in the absence of major trauma, were possible only if he had been shaken violently. And the narrow, medically accepted time frame of the onset of the baby's symptoms pointed to Witt.

Witt, seated at the defense table, still held out hope. But his defense attorney called only one expert to cast doubt on whether the injuries were caused by shaking. Karen Griest, a forensic pediatric pathologist and former New Mexico coroner, said that "shaken-baby syndrome is sort of a hot topic of debate in the medical community. It's sort of an evolving process to figure out what is going on."

In closing arguments, the prosecutor painted a picture for the jury of Witt shaking the child.

"The defendant knowingly grabbed Steven, shook him so violently that he started to seize," Greer said. "Drayton had to know that Steven was being violently injured while he was shaking him to death, inches in front of his face," she said.

Jurors found Witt guilty of second-degree murder. When it came time for Witt's sentencing in April 2002, he told the judge that although he had been an unruly teenager, he had turned his life around with Holt and Steven. But he was not apologetic.

"I am not sorry, for I didn't do no wrong," Witt said, according to a transcript of the hearing. "I came up here to tell you how much my son meant to me."

The judge sentenced him to 20 years.

* * *

Though Witt asked for protective custody in prison, he said the request was denied, and he was put into the general inmate population. Three years into his sentence, he was attacked in the recreation yard by three men with improvised knives. Witt tucked himself into a ball and tried to cover his head, but said he was stabbed some 70 times before it was over. Ten of those wounds went through one or the other of his hands.

Witt was flown to a Flagstaff hospital, where doctors did surgery to repair his hands. Holt was at work when she got the call from Witt's parents telling her of the attack. When she saw him in his hospital bed, she knew they had to get married.

"Just wanting to make sure that he knew that I was there," she said. "And no matter what, he knew that if it came to 2020, I might be old and gray, but that I would be the one standing by that gate (waiting) for him to come home."

The wedding was in September 2006. The groom wore orange, his "carrot suit," as Witt called it. Prison rules dictate what a bride may wear: A wedding dress must have a neckline above the collarbone and sleeves that cover the arms. And no orange; that color is reserved for inmates. In the end, Holt just bought a dress she liked -- it was maroon -- and pulled a T-shirt over it during the ceremony to cover enough bare skin.

Tradition endures even in the strangest of settings. Witt said he paced in his cell nervously before the ceremony, held just before visiting hours. He would get to wear his wedding band in prison, but the bride had to provide prison officials proof of purchase. Guards did allow the groom to kiss the bride.

"It's emotional, no matter what," Holt said.

At the time of the wedding, all of Witt's appeals had been denied and exhausted. It appeared he would be in prison until 2020.

* * *

In 2009, Deborah Tuerkheimer published her paper, "The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts" in the Washington University Law Review.

"In its classic formulation, SBS comes as close as one could imagine to a medical diagnosis of murder," Tuerkheimer wrote. "Prosecutors use it to prove the mechanism of death, the intent to harm, and the identity of the killer."

Also that year, the American Academy of Pediatrics revised its position paper on shaken-baby syndrome. It urged physicians to stop using that term and instead describe injuries as "abusive head trauma." The group said it urged adoption of the "less mechanistic term" to stop the focus on shaking. Instead, the journal said, doctors should look at a wider range of possible causes.

Witt's prison records show that he was a model inmate after his marriage. He had been moved into protective custody following his assault. While there, he met Armando Castillo, another man who had been convicted of shaking a child to death.

The Arizona Justice Project filed its motion in Castillo's case in April 2010; his conviction was vacated 10 months later. The project took up Drayton Witt's case in 2011, and the news was a blast of hope, Maria Witt said. "You get that light sparked back in your life."

Those working on Witt's case assembled a list of medical experts who reviewed Steven's autopsy photos and medical records. Most concluded that Steven's death was likely caused by a blockage in the vein that drained blood from his brain.

The attorneys also spotted a letter in the New York TimesMagazine from Norman Guthkelch, the British pediatric neurosurgeon who first wrote about the symptoms that indicated a shaken baby. In the letter, a response to an article about the changing medical opinions about shaken-baby syndrome, Guthkelch defended his 1971 paper that concluded babies can get severe brain damage from shaking. The city under Guthkelch's name: Tucson.

The Project attorneys asked Guthkelch to look at the records in the case. He filed an affidavit in support of Witt, which marked his first legal involvement on behalf of a person trying to reverse a shaken-baby conviction.

"The death of Steven Witt is the type of case where a diagnosis of Shaken Baby Syndrome should not have been made," Guthkelch wrote. He said there were too many other possibilities that could explain the baby's death, and that while his process offers a possible explanation for some head injuries, any presumption that an injured child was shaken was a "distortion" of his theory.

Also key to the case was the affidavit of A.L. Mosley, the county medical examiner who performed the autopsy on Steven. Mosley was shown new analysis of his autopsy by doctors who spotted errors in his work. Most notably, doctors said, autopsy photos showed a blocked and swollen vein that was not noted in the report.

Mosley, in his affidavit, concluded that "if I were to testify today, I would state that I believe Steven's death was likely the result of a natural disease process, not (shaken-baby syndrome)."

Witt's attorneys filed the motion in February. The state did not file a response. The judge vacated Witt's conviction and ordered his release.

* * *

The newly cast scientific thought on shaken-baby syndrome is affecting other cases. A 2007 case against Lisa Randall, a day-care operator, originally filed as a death-penalty case, was tossed out before it reached trial. An expert hired by the prosecution in 2010 concluded that the child did not die from shaking as originally thought.

In 2009, prosecutors dropped murder charges against Craig Rettig in a shaken-baby case from 2004. The defendant's lawyer located experts who found that the baby died from striking his head on a coffee table, not from being shaken.

Also, in 2009, Keith Roberts asked that expert testimony about shaken-baby syndrome not be allowed in his trial on charges that he killed his infant son. The Maricopa County Attorney's Office argued that both sides should present their experts and leave it for the jury to decide. The judge agreed. Roberts took a plea offer the day before his trial was scheduled to begin. He was sentenced to eight years in prison.

Witt was released from custody wearing a jail-issued paper suit. He borrowed a cellphone from a passer-by to call his wife. It was 8 a.m. She had been told he wouldn't be released until noon. She broke speed-limit laws driving from the opposite end of town to get him.

Maria Witt said having her husband out of prison is validation.

"To finally have people believe in me," she said, "and be able to start the grieving process and what we missed out on, and be able to start on the life that we missed out on, is more precious than anything."

Drayton Witt, who is working on a construction crew, said he often feels like a modern-day Rip Van Winkle, awakening to find a world where so much is accomplished by cellular phone, or that there are self-checkout lanes at the grocery store.

Witt does not want to take a plea deal like his friend, Castillo, did. He hopes prosecutors drop the case before his trial next year.

He does not blame police or prosecutors for the decade he spent behind bars. He said officers and attorneys were just doing their job. And he always figured the truth would win out.